J0s44 



£7 



62r> Congress \ 
3d Session i 



SENATE 



/ Document 
\ No. 1095 



THE CONSTITUTION, THE COURT, 
AND THE PEOPLE 



ARTICLE IN THE 

YALE LAW JOURNAL 

OF JANUARY, 1913 



RALPH W. BRECKENRIDGE 

Of the Omaha Bar 



o 



PRESENTED BY MR. SUTHERLAND 
February 21, 1913. — Ordered to be printed 



WASHINGTON 
1913 




D. OF D. 
MAR 15 1913 



,ii 



* 



l\ 



*V ^ 



A 






THE CONSTITUTION, THE COURT, AND THE PEOPLE/ 



By Ralph W. Beeckenridge, of the Omaha bar. 



The institution known as the American Republic marks the extreme 
limit of the progress ol mankind. The distribution, under our written 
Constitution, of the functions of government, is the crowning achieve- 
ment of social order. 

The rights of man have never been given full recognition elsewhere 
or hitherto. Individual initiative, enterprise and energy, have had 
their fruitage here. Our achievements and our standards of life, 
social and political, have turned the eyes of the oppressed and down- 
trodden of all lands toward America; and the struggling millions of 
Asia are stretching out eager hands toward us as the exponents of a 
civilization which has established the largest individual liberty, the 
right to hold the freest political and religious opinions, and brought 
about the highest average of human comfort ever known. 

The material prosperity of the United States is the marvel of all 
the people of the earth. We have run' cables under the sea; we have 
installed the wireless telegraph on land and sea; we are uniting the 
Atlantic and Pacific Oceans by the Panama Canal; we have subju- 
gated all the elements; we have harnessed steam, electricity, fire, 
water, and air; the lost arts have been recovered, and in spite of the 
fact that our flag is conspicuously missing from the wide paths of 
commerce on the high seas, this nation is the foremost nation of the 
globe; we occupy that proud position because the fathers of the 
Republic and their successors have established between the two great 
oceans and the Lakes and the Gulf a government of all the people, by 
all the people, and for all the people, and not a government of one class 
over another, or of a majority that tramples on the minority. But 
no peoples have prospered, no governments have lasted, without the 
influence of law and lawyers. The forgotten nations, the buried 
civilizations, are those whose power and influence came through 
piracy and the conquests of war. India and Egypt are full of monu- 
ments of a departed greatness that knew no systems of law which 
gave justice to individuals. History records the decay and final 
defeat of every nation which has not possessed a system of law 
administered as a part of the government itself; of those Phoenicia, 
Babylon, Carthage, Greece, and Rome are familiar examples, and 
Turkey and Spain are modern instances. Moorfield Storey truly 
says that the Corpus Juris of Justinian is the most enduring monu- 
ment of imperial Rome, and that Napoleon's most valuable legacy to 
the world is the code which bears his name. 2 

No4mb dd 22 SS 19l2 liVered at the annual meotin S of the California State Bar Association at Fresno, 
» Reform of Legal Procedure, p.. 10. 

3 



4 THE CONSTITUTION, THE COURT, AND THE PEOPLE. 

It is to the credit of the American bar that its leaders have had 
so much to do with the upbuilding of American institutions and 
our civilization and with the making of the laws under which this 
Nation has grown from the three millions who lived in scanty set- 
tlements bordering on the Atlantic coast to the ninety and more 
millions who have populated our country in its length and its 
breadth — laws that have made possible this climax of human effort. 
Has the mission of the lawyer ended? Has he lost his power and 
his right to influence among the people ? I do not believe it. 

The magazines, the daily newspapers, and political orators have 
freely criticized the system under which laws are administered in 
the United States. There is a great deal of popular dissatisfaction 
with the administration of law, but that dissatisfaction which 
expresses itself in fierce and unreasoning criticism of our courts 
and of the profession to which we belong is largely based upon ignor- 
ance of legal principles and misapprehension of the facts. There are 
defects in the administration of law in the United States which are 
a reproach to it. The delays and expense of litigation have no 
justification, and the useless and cumbersome science of procedure 
has obscured the merits of many a cause. To adopt the words of an 
eminent southern lawyer: 

However, because there is a leak in the roof we should not tear down the house; and 
because there are defects in the administration of law I can not yield myself to the 
proposition that our system of jurisprudence should be destroyed. 1 

And the bar is itself awake to these evils, and through the bar 
associations of the States and the American Bar Association there 
has come the assurance of radical reforms along these lines. In 
addition to this, the United States Supreme Court has revised the 
rules of Federal equity procedure so as to place the conduct of equity 
causes in the courts of the United States on a simple and rational 
basis and abolish useless formality and expense. 

The courts and the bar may expect to be criticized for a defective 
and stupid administration of law, although the public itself, because 
of its well-known niggardliness toward the judiciary and the pre- 
vailing low grade of business morals, must bear its share of the blame 
for this. 

The situation is one which should be met and dealt with in a spirit 
of fairness on our part, but we demand of the critics of the courts 
and the bar that they shall be fair, honest, and intelligent in their 
criticisms. 

There are very many well-intentioned but poorly informed folks 
who talk a great deal about the Constitution and the courts and the 
people without any clear conception of the function of the judiciary 
under our form of government, and they talk about throwing aside 
not only the restrictions but the very safeguards that are contained 
in the Constitution of the United States, just like people change 
their clothes to suit different occasions and different degrees of tem- 
perature. 

Students of American history are wont to think of those years 
which intervened between the close of the Revolutionary War and 
the adoption of the Federal Constitution as the critical period of 

1 " The unrest as to the administration of law," by Albert W. Biggs, of Memphis; annual address before 
Texas Bar Association, July 3, 1912. 



THE CONSTITUTION, THE COURT, AND THE PEOPLE. 5 

American history, and that eminent historian, John Fiske, has thus 
designated that stormy time; but the present vociferous renewal of 
the original challenge both to the sufficiency and efficiency of our 
Constitution to provide a scheme of government adequate for the 
American people, and the bold assertion that it does not and can not 
serve the purpose when applied to twentieth-century conditions, 
makes pertinent the inquiry whether we ourselves may not be living 
in a time more pregnant with dangers than the fathers knew, for 
"nothing can be more incompatible with justice, nothing more cor- 
rosive of law, than sensation and excitement. " * 

Marshall, in his opinion in Marbury v. Madison, 2 gave a masterful 
exposition of the distribution of and limitations upon the powers of 
government under the Constitution in terms so logical as to admit 
of no denial from any thinking man who believes in our form of 
government, and in language so simple that it can not be misunder- 
stood by anybody: 

That the people have an original right to establish, for their future government, such 
principles as, in their opinion, shall most conduce to their own happiness, is the basis 
on which the whole American fabric has been erected. The exercise of this original 
right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The 
principles, therefore, so established, are deemed fundamental; and as the authority 
from which they proceed is supreme, and can seldom act, they are designed to be 
permanent. 

This original and supreme will organizes the government, and assigns to different 
departments their respective powers. It may either stop here, or establish certain 
limits not to be transcended by those departments. The Government of the United 
States is of the latter description. The powers of the legislature are defined and /\ 
limited; and that these limits may not be mistaken or forgotten, the Constitution is - . / 
written. To what purpose are powers limited, and to what purpose is that limitation ?yv\ 
committed to writing, if these limits may, at any time, be passed by those intended Li^ 
to be restrained? (The distinction between a government with limited and unlimited 
powers is abolished, if those limits do not confine the persons on whom they are im- 
posed, and if acts prohibited and acts allowed are of equal obligation.! It is a proposi- 
tion too plain to be contested, that the Constitution controls any legislative act repug- 
nant to it; or, that the legislature may alter the Constitution by an ordinary act. _ 

Between these alternatives there is no middle ground. The Constitution is either 
a superior paramount law, unchangeable by ordinary means, or it is on a level with 
ordinary legislative acts, and like other acts is alterable when the legislature shall 
please to alter it. If the former part of the alternative be true, then a legislative act, 
contrary to the Constitution, is not law; if the latter part be true, then written consti- 
tutions are absurd attempts, on the part of the people, to limit a power in its own nature 
illimitable. 

That distinguished teacher, writer, and juristic philosopher, Roscoe 
Pound, recently said : 

A generation ago we were sure of our political institutions. Now criticism has 
become the fashionable note. 3 

Our generation refuses to accept the dogmas of its predecessors; 
skepticism and incredulity are taught in most of our higher institu- 
tions of learning. Kant says: 

The present age may be characterized as the age of criticism, a criticism to which 
everything is obliged to submit. 

He further says that law on the ground of its majesty not uncom- 
monly attempts to escape this necessity and thereby arouses the 
suspicion that its foundation is unsound. No mere theory goes 

i Roscoe Pound, Law and the People. 
»1 Cranch, 137, 175. 

3 Address before the Missouri State Bar Association, St. Louis, October, 1912, entitled "Social justice 
and legal justice." 



6 THE CONSTITUTION, THE COURT, AND THE PEOPLE. 

unchallenged, and if a law, whether substantive or adjective, does 
not meet the public need it deserves to be displaced and superseded; 
but those limitations which the framers of the Constitution, the 
supreme law of the land, put in that instrument and which, after the 
fiercest debates in our history, the people adopted to protect the 
rights of the minority are not to be discarded at the will of a popular 
majority nor otherwise than through that solemn, deliberate pro- 
cedure provided by the Constitution itself. Any other method of 
amending the Constitution under pretense of carrying out the popu- 
lar will means revolution and involves a step 2,000 years backward. 
Listen to Aristotle: 

It would seem a just criticism to assert that this kind of democracy is not a consti- 
tutional government at all, as constitutional government is impossible without the 
supremacy of laws. For it is right that the law should be supreme universally and 
the officers of state only in particular cases, if the government is to be regarded as 
constitutional. And as democracy is, as we have seen, a form of polity, it is evident 
that the constitution, in which all business is administered by popular decrees, is 
not even a democracy in the strict sense of the term, as it is impossible that any 
popular decree should be capable of universal application. 1 

The tendency to deny the claims of the existing order of things, 
though it may arouse our antagonism, calls for calm and dispas- 
sionate consideration. The experienced lawyer keeps his head in 
the hard-fought contests of the forum. If it is our ultimate duty 
to cleanse the administration of justice of its defects and reestablish 
the public confidence in our courts, it is our immediate duty to cor- 
rect the current misunderstanding of the true relations of the Con- 
stitution and the courts and the people toward each other by directing 
attention to certain incontestible facts and fundamental truths which 
no patriot can disregard. Let me therefore sketch briefly the con- 
ditions which confronted the American people before our Constitu- 
tion was adopted and show why a compact was made for a Union of 
States in the adoption of that Constitution which Gladstone said is 
"the most wonderful work ever struck off at a given time by the 
brain and purpose of man." 

The Confederation had proven a rope of sand; and only through 
the patriotism and high purpose of Washington did the Revolution 
result in victory to the ragged, tired American forces. After the 
surrender of Cornwallis at Yorktown the efforts to establish credit 
abroad and tranquility at home were unsuccessful. Even before the 
Revolutionary Army had disbanded, in a letter known as Washing- 
ton's legacy to the American people, he insisted upon four things 
which were essential to the existence of the United States as an inde- 
pendent power. Of these essentials, but two need be here noticed: 

The first: 

An indissoluble union of all the States under a single Federal Government which 
must possess the power of enforcing its decrees. 

The last: 

The people must be willing to sacrifice, if need be, some of their local interests to 
the common weal; they must discard their local prejudices and regard one another 
as fellow citizens of a common country with interests in the deepest and truest sense 
identical. 2 

i The Annals of the American Academy of Political and Social Science, September, 1912, p. 37. 
2 Fiske: Critical Period of American History, 64.5 



THE CONSTITUTION, THE COURT, AND THE PEOPLE. 7 

The commercial and political rivalry between the States was sharp; 
the civilization they severally enjoyed differed in degree; the sepa- 
ration of the people was complete and their isolation so great as to 
be almost beyond our comprehension. There were no steamboats, 
no railroads, and it took a week or 10 days of uncomfortable and 
dangerous travel to go from Boston to New York, and, as the mails 
were irregular and uncertain and the rates of postage very high, 
people heard from one another but seldom. 1 It was impossible to 
raise a revenue to conduct a government. The States passed differ- 
ent traffic and tonnage acts and began to make commercial war upon 
one another. Connecticut and Pennsylvania quarreled over the Val- 
ley of the Wyoming, and the story of the treatment of the unfortunate 
Yankees by the Pennsylvania Legislature and militia is a chapter 
reciting the most cruel conduct ever charged against any of the 
American people, except our treatment of the Indian tribes. The 
long and bitter dispute between New York and New Hampshire for 
the possession of the Green Mountains broke out afresh, the farmers 
and merchants of Rhode Island were in a fierce controversy with 
each other, and Shay's rebellion occurred in Massachusetts. At this 
critical juncture, when anarchy seemed the doom of America, Wash- 
ington conceived a project to connect the headwaters of the Potomac 
with the Ohio River and inspired the agreement between the States 
of Maryland, Virginia, and Pennsylvania with reference to the pro- 
posed enterprise. From :his modest beginning the Constitution was 
evolved, 2 and the regulation of commerce was the chief motive for 
the Federal compact. 3 

The student of constitutional history is familiar with subsequent 
events which resulted in the adoption of the Constitution. The plan 
of the Federal Union, as proposed by the delegates from Virginia, 
which practically obliterated State lines and obliterated State rights, 
was substantially adopted, except as modified by giving to the several 
States equal representation in the Senate. But it is not to be for- 
gotten that even then there were men of undoubted patriotism, as 
they understood patriotism, in and out of the constitutional conven- 
tion, who bitterly opposed it, chiefly because it meant the surrender 
of divers powers which had always theretofore been exercised by 
the States. 

James Wilson sought to have his associates take a larger view of 
the work in which they were engaged than the mere protection of 
local and transient interests. He said: 

We should consider that we are providing a Constitution for future generations 
and not merely for the peculiar circumstances of the moment. 4 

Again he said: 

I am lost in the magnitude of the object. We are laying the foundation of a build - 
ing in which millions are interested, and which is to last for ages. 5 

^Marshall and Story, those two great expounders of the Constitu- 
tion, were impressed with the same idea of the tremendous scope of 

1 Fiske: Critical Period of American History, 73. 

* Fiske: The Critical Period of American History, 251; Kasson: Evolution of the United States Consti- '■■' 
tution, 40. 

» Kasson: Evolution of the United States Constitution, 138; see also my paper, "Is the Federal Consti- 
tution adapted to present necessities, or must the American people have a new one. " Yale Law Journal , 
March, 1908. 

4 Vol. Ill, Documentary History of the Constitution of the United States of America, 440. 

» Kasson, 82. 



8 THE CONSTITUTION, THE COURT, AND THE PEOPLE. 

the powers granted by it to the Federal Government, and they took 
early opportunity to place the Supreme Court on record in favor of 
such an interpretation of the supreme law as to give effect not only 
to the distribution of the powers of government within the limits 
intended by the framers of the Constitution, but which recognized 
the adaptability of its provisions to changes, so as to "keep pace 
with the progress of the country." 

Story referred to the Constitution as the "great charter of our 
liberties." He said: 

The instrument was not intended to provide merely for the exigencies of a few 
years, but was to endure through a long lapse of ages, the events of which were 
locked up in the inscrutable purposes of Providence. 1 

Said Marshall: 

But a constitution is framed for ages to come, and is designed to approach immor- 
tality as nearly as human institutions can approach it. Its course can not always 
be tranquil. It is exposed to storms and tempests, and its framers must be unwise 
statesmen indeed, if they have not provided it, so far as its nature will permit, with 
the means of self-preservation from the perils it may be destined to encounter. _ No 
government ought to be so defective in its organization as not to contain within itself 
the means of securing the execution of its own laws against other dangers than those 
which occur every day. 2 

The limitations of this paper do not admit of extended references 
and illustrations of the way the commerce clause has worked. But 
the sure way to demonstrate that the Federal judiciary has from the 
beginning disclaimed any interference in this department of govern- 
ment is to call the court itself as a witness. If the commerce among the 
States needs more regulation than it has had, the fault lies with the 
people, who, through their Representatives in Congress, have the 
power, under the Constitution, to define and declare the subject of 
interstate commerce, for, said Wilson, the — 

Congress has power to make all laws which shall be necessary and proper for carrying 
into execution every power vested by the Constitution in the Government of the 
United States or in any of its officers or departments. 3 

It will be remembered that Marshall, though not a member of the 
Constitutional Convention, took an active part in the campaign for 
its adoption in Virginia, and in McCulloch v. Maryland 4 he charac- 
terized it as "intended to endure for ages to come, and consequently 
to be adapted to the various crises of human affairs." In that case, 
Webster, in his argument before the Supreme Court, said: 

Congress, by the Constitution, is invested with certain powers, and as to the objects, 
a,nd within the scope of those powers, it is sovereign. 

And the ruling of the court was, that if a certain means to carry 
into effect any of the powers expressly given by the Constitution to 
the Government of the Union, be an appropriate measure, not pro- 
hibited by the Constitution, the degree of its necessity is a question 
of legislative discretion, not of judicial cognizance. 

i Martin v. Hunter's Lessee, 1 Wheat., 304, 326. 

2 Cohens v. Virginia, 6 Wheat., 264, 387. 

3 2 Wilson's Works (Andrew's ed.), 59. 
* 4 Wheat, 316, 413. 



THE CONSTITUTION, THE COURT, AND THE PEOPLE. 9 

The same thought found expression in the opinion of the court in 
these words: 

But where the law is not prohibited and is really calculated to effect any of the 
objects intrusted to the Government, to undertake here to inquire into the degree 
of its necessity would be to pass the line which circumscribes the judicial department, 
and to tread on legislative ground. 1 

Shortly afterwards the great Chief Justice said : 

The wisdom and the discretion of Congress, their identity with the people, and 
the influence which their constituents possess at elections are, in this, as in many 
other instances, as that, for example, 01 declaring war, the sole restraints on which 
they have relied to secure them from its abuse. They are the restraints on which 
the people must often rely solely in all representative governments. 2 

> There is therefore no longer any question as to the unlimited 
power of Congress over interstate commerce, and whether the power 
is applicable to any given subject — transportation, the telegraph, 
insurance, or other interstate enterprises — is for Congress to say and 
not for the court. 

In one of the opinions of that case it was declared: 

The language which grants the power as to one description of commerce grants it an 
to all. 3 

In speaking of the power of Congress over navigation, Justice 
Johnson said he did not regard it as a power incidental to that of 
regulating commerce, but he said: 

I consider it as the thing itself; inseparable from it as vital motion is from vital 
existence. 
Commerce — 

Said he — 

in its simplest signification means an exchange of goods; but in the advancement of 
society, labor, transportation, intelligence, care, and various mediums of exchange 
become commodities, and enter into commerce; the subject, the vehicle, the agent, 
and their various operations become the objects of commercial regulations. Ship- 
building, the carrying trade, and protection of seamen are such vital agents of com- 
mercial" prosperity that the nation which could not legislate over these subjects 
would not possess power to regulate commerce. 

Mr. Justice Field also said, in a later case, that an article of com- 
merce is determinable by the usages of the commercial world. 4 

Chief Justice Waite said of the powers granted by the commerce 
clause : 

The powers thus granted are not confined to the instrumentalities of commerce, 
or the postal service known or in use when the Constitution was adopted, but they 
keep pace with the progress of the country and adapt themselves to the new develop- 
ments of time and circumstances. 6 

Mr. Justice Miller said that the power of regulation under the 
commerce clause has been applied "to a method of intercourse which 
had no existence when the Constitution was framed." 6 

Mr. Justice Brewer more recently said : 

Constitutional provisions do not change, but their operation extends to new mat- 
ters as the modes of business and habits of life of the people vary with each succeed- 
ing generation. The law of the common carrier is the same to-day as when 

14 Wheat, 423. 

2 Gibbons v. Ogden, 22 TJ. S., 1, 197. 

3 Gibbons v. Ogden, supra. 

* Bowman v. Railway, 125 U.S., 465. 

& Pensacola Telegraph Co. v. Western Union Telegraph Co., 90 U. S., 1, 9. 

• Miller on the Constitution, 450. 

S. Doc. 1095, 62-3 2 



10 THE CONSTITUTION, THE COURT, AND THE PEOPLE. 

transportation on land was by coach and wagon, and on water by canal boat and 
sailing vessel, yet in its actual operation it touches and regulates transportation by 
modes then unknown, the railroad train and the steamship. Just so it is with the 
grant to the national government of power over interstate commerce. The Consti- 
tution has not changed. The power is the same. But it operates to-day upon 
modes of interstate commerce unknown to the fathers, and it will operate with equal 
force upon any new modes of such commerce which the future may develop. 1 

And the late Chief Justice Fuller said: 

We can not hold that any articles which Congress recognizes as subjects of inter- 
state commerce are not such. 2 

I cite two illustrations of the exercise by Congress of this power 
in response to suggestions from the court. The first involved a sharp 
disagreement between Congress and the court, and the second quickly 
produced the long-delayed Federal regulation of interstate carriers. 

In the Wheeling Bridge case 3 the court held the bridge a nuis- 
ance because it was constructed in such a manner as to impede 
navigation; but Congress afterwards passed an act declaring it to 
be a post road and a lawful structure, and required boats navigating 
the Ohio River to lower their smoke stacks so as not to interfere 
with it, and thereby nullified the prior decision. 4 

Prior to the decision of the Supreme Court in Wabash, St. Louis 
& Pacific Railroad Co. v. Illinois, 5 decided October 25, 1886, the 
court in the Granger cases had apparently held that it was com- 
petent for the State of Illinois to impose certain taxes which consti- 
tuted a burden upon interstate commerce. Congress had then never 
legislated upon this subject. The Interstate Commerce Commission, 
by which the control of Congress was asserted over interstate car- 
riers, was created by an act of Congress passed in 1887. 6 But the 
majority opinion of the Supreme Court in the Wabash Railroad case, 
written by Mr. Justice Miller, concluded with these words : 

Of the justice or propriety of the principle which lies at the foundation of the 
Illinois statute it is not the province of this court to speak. As restricted to a trans- 
portation which begins and ends within the limits of the State it may be very just 
and equitable, and it certainly is the province of the State legislature to determine 
that question. But when it is attempted to apply to transportation through an entire 
series of States a principle of this kind, and each one of the States shall attempt to 
establish its own rates of transportation, its own methods to prevent discrimination 
in rates, or to permit it, the deleterious influence upon the freedom of commerce 
among the States and upon the transit of goods through those States can not be over- 
estimated. That this species of regulation is one which must be, if established at 
all, of a general and national character and can not be safely and wisely remitted to 
local rules and local regulations, we think is clear from what has already been said. 
And if it be a regulation of commerce, as we think we have demonstrated it is, and 
as the Illinois court concedes it to be, it must be of that national character, and the 
regulation can only appropriately exist by general rules and principles, which demand 
that it should be done by the Congress of the United States under the commerce 
clause of the Constitution. 5 

The State rights doctrine seems here and there to find advo- 
cacy, but it is not a real, live issue; it is only a ghost. Nevertheless, 
those who are talking about it talk about it as though it was some- 
thing new. I quote again from James Wilson what he said on this 
point: 

A citizen of America is a citizen of the General Government and citizen of the 
particular State in which he may reside. The General Government is meant for them 



i In re Debs, 158 IT. S., 591. 6 ns U. S., 557. 

I l?W v - Hardin < 135 u - S., 100, 125. 6 3 CT; S., Compiled Statutes, 1901, 

s 13 How., 519. p. 3153. 

4 Van Santvoord: Lives and Services of the Chief Justices, 529. 



THE CONSTITUTION, THE COURT, AND THE PEOPLE. 11 

in the first capacity; the State government in the second. * * * The General 
Government is not an assemblage of States, but of individuals for certain political 
purposes. It is not meant for the States, but for the individuals composing them. 
The individuals therefore, not the States, ought to be represented in it. 1 

The Constitution was passed upon three compromises: The first, 
already referred to, was the concession of equal representation of the 
States in the Senate and the establishment of a national system of 
representation in the lower House. The second, which gave dis- 
proportionate weight to the slave States, gained their support. The 
third, the postponement for 20 years of the abolition of the foreign 
slave trade, secured absolute free trade between the States, with the 
surrender of all control over commerce into the hands of the Federal 
Government. 2 

This concession of absolute power to Congress over commerce so 
disgusted and enraged Randolph and Mason that they refused to 
sign the Constitution, and Mason remained its violent opponent. 3 

A letter drafted by the convention to accompany the Constitution 
contained this statement: 

It is obviously impracticable, in the Federal Government of these States to secure 
all rights of independent sovereignty to each, and yet provide for the interest and 
safety of all. Individuals entering into society must give up a share of liberty to 
preserve the rest. 4 

It is too late, in view of the fact that this question involves the 
original controversy between the States and a central government and 
the surrender of the power of the State to the Federal Government 
in the interest of the common weal, to urge it now; and regardless of 
the impassioned declarations of those who would enlarge the power 
of the States and minimize that of the Federal Government and thereby 
disqualify it, the central government is supreme, and will continue 
to be so, for so it must be. 

As individuals we may be proud of the growth, prosperity, develop- 
ment, and culture of the Commonwealths in which we live; but that 
patriotic sentiment which, when called into action, is the strongest 
emotion exhibited by freemen, rests upon the fact that we are citizens 
of the United States and not of Virginia, California, or Nebraska. 

It was Madison who said : 

The public good, the real welfare of the great body of the people, is the supreme 
object to be pursued ; no form of government whatever has any other value than as 
it may be fitted for the attainment of this object. Were the plan of the convention 
adverse to the public happiness, my voice would be, reject the plan. Were the Union 
itself inconsistent with the public happiness, it would be, abolish the Union. In like 
manner, as far as the sovereignty of the States can not be reconciled to the happiness 
of the people, the voice of every good citizen must be, let the former be sacrificed to 
the latter. 5 

Wilson, in the early days of the convention, made this statement: 

On examination it would be found that the opposition to Federal measures had pro- 
ceeded much more from the officers of the States than from the people at large. 6 

Later he said: 

He did not see the danger of the States being devoured by the National Government. 
On the contrary he wished to keep them from devouring the National Government. 7 

i Kasson, 82. 

2 Fiske: The Critical Period of American History, 317. 

3 Ibid., 314, 403. 
* Kasson, 197. 

6 The Federalist, No. 45. 

6 Vol. Ill, Documentary History of the Constitution. 2i. 

1 1bid., 84. 



12 THE CONSTITUTION, THE COUKT, AND THE PEOPLE. 

Again he said : 

He conceived that, in spite of every precaution, the General Government would be 
in perpetual danger of encroachments from the State governments. 1 

In this Madison agreed, and expressed the opinion "that there was 
(1) less danger of encroachment from the General Government than 
from the State governments. (2) That the mischief from encroach- 
ments would be less fatal if made by the former than if made by the 
latter." 1 

I deny the soundness of criticisms leveled against our Constitution 
upon the ground that it commits too much power to the Central 
Government and takes from the States powers which they ought to 
exercise, for in our national experience the attempted regulation by 
the States in many, if not all, of the matters that concern the people 
as a whole, has not worked to the satisfaction of the people, and what 
the National Government has undertaken, has worked. 

It is as true to-day as it was a century ago, that the demand for more 
power on the part of the States is by the governors and attorneys 
general of the States, and other State officers who seek to magnify their 
own offices, and not by the people of the States, few of whom would 
know that they had been deprived of any rights, either actual or 
imaginary, unless they were told about it. 

Possibly the severest indictment against the American judiciary is 
the claim that it has exceeded its powers in those decisions where acts 
of the legislature have been annulled upon the ground that they were 
unconstitutional, and the charge is made that the judiciary has thereby 
invaded the legislative department of the Government. 

I shall not discuss either the recall of judges or the recall of judicial 
decisions. (I take the liberty, however, of saying parenthetically, that 
I do not believe in either of them.) There is no excuse for judicial 
legislation, but it does not by any means follow that because .an act, 
whether of Congress or of a State legislature, is declared contrary to 
the paramount law, that the court so holding has committed the 
offense of legislating. 

Senator Sutherland, in a scholarly address before the American Bar 
Association, 2 referred to the fact that the framers of the Constitution 
were deeply learned in the science and history of government, and that 
they knew and sought to avoid the weaknesses and dangers to be 
guarded against if government by the people should endure; and 
because they knew that a pure democracy "was a beautiful but a 
barren and deceptive ideality which had never survived and in the 
nature of things could never survive the test of practical experience," 
they sought to establish the foundation of government for the United 
States of America upon a firmer basis. I quote the Senator's words : 

By the Constitution they, therefore, established a representative Republic — a self- 
limited democracy as distinguished from an unlimited democracy. They provided 
for the three separate and distinct departments, conferring upon each its appropriate 
powers, and thereby denying to each any authority to invade the domain of the 
others. So delicate and yet so strong was the adjustment that the plan has operated 
with justice and efficiency for more than a century of unchallenged time. 

It would be indeed surprising if during the 125 years of the history 
of jurisprudence in the United States the State supreme courts, num- 

1 Vol. Ill, Documentary History of the Constitution, 179. 

»At Milwaukee, August, 1912: Title, "The courts and the Constitution." 



THE CONSTITUTION, THE COURT, AND THE PEOPLE. 13 

bering originally 13 and now increased to 48, had never overstepped 
the boundary between the judicial and the legislative departments of 
Government; but the voters of the several States have a ready and 
speedy remedy against any such assumption of power, and the state- 
ment of the present Chief Justice of the Supreme Court of the United 
States, who, in my opinion, is the greatest jurist of our time, is a con- 
clusive answer to those who, in ignorance of the facts, charge that the 
national judiciary has encroached upon the powers committed to the 
other departments of our Government. He said in McCrary's case: 

No instance is afforded from the foundation of the Government where an act, 
which was within a power conferred, was declared to be repugnant to the Constitution, 
because it appeared to the judicial mind that the particular exertion of constitutional 
power was either unwise or unjust. 1 

But the Constitution says "the judicial power shall extend to all 
cases hi law or equity arising under this Constitution." 

And the obligation to enforce the Constitution as "the supreme 
law of the land" is laid on the judiciary hi the following terms: 

This Constitution and the laws of the United States which shall be made in pur- 
suance thereof, and all treaties made or which shall be made under the authority of 
the United States, shall be the supreme law of the land, and the judges in every State 
shall be bound thereby; anything in the constitution or laws of any State to the con- 
trary, notwithstanding. 

It must be remembered that even the Declaration of Independence 
in which the signers referred to the colonies as "The United States of 
America," contained no specification of the powers which the Union, 
as distinct from the States, should exercise. 2 

And the Articles of the Confederation made no provision for super- 
vising or annulling such legislative acts as might be passed hi viola- 
tion of it; hence the controversy between the States and factions, 
already recited. 

The Constitution, which separated the powers of government into 
the three departments — executive, legislative, and judicial — also con- 
ferred three points of previous dispute, viz, taxation, the regulation 
of interstate and foreign commerce, and the right to acquire or govern 
colonies, upon the Union; and provided how and by whom legislative 
acts not within the powers of either the Federal Government or the 
States might be reviewed or annulled ; and although the employment 
of this extraordinary power involves the possible reversal of the will 
of a popular majority as crystallized hi legislation, its exercise was 
nevertheless intended to and does register the supreme will of the 
people according to principles they declared by agreeing to our social 
and governmental compact, as those principles are stated in the 
Federal Constitution; but the use of this power does not give the 
nine men who compose the Supreme Court of the United States any 
right or privilege to impose their individual opinions upon the people, 
nor any other power or authority than to state the law as it is, and 
thereby give effect to the will of the people. 

Dr. Pound, discussing the changes going on in the substantive 
law, and the difficulties confronting the courts in a period of transi- 
tion, 3 speaks of the difference in the rate of progress between law and 

i McCrary v. United States, 195 U. S., 27, 54. 

2 Annals of the American Academy, September, 1912, p. 290. 

2 His address, " Social justice and legal justice." 



14 THE CONSTITUTION, THE COURT, AND THE PEOPLE. 

public opinion, and states the necessity for reducing law to fixed rules, 
as follows : 

In order to preclude corruption, to exclude the personal prejudice of magistrates, 
and to minimize individual incompetency, law formulates the moral sentiments of 
the community in rules to which the judgment of tribunals must conform. These 
rules ? being formulations of public opinion, can not exist in any settled form until 
public opinion has become fixed and settled, and can not change in any far-reaching 
particular until a change of public opinion has been complete. * * * Public opin- 
ion must affect the administration of justice through the rules by which justice is ad- 
ministered rather than through the direct administration. 

These observations are especially relevant to complaints of the 
courts for refusing to enforce legislative acts which violate consti- 
tutional authority and lay bare the offense against the social order 
involved in the use of pressure to compel the courts to respond to - 
popular clamor. Moreover, the very foundations of law are shaken 
whenever a judge with his ear to the ground substitutes his personal 
notions, which may be popular, of what the law should be for that 
which is. 

Senator Sutherland, in the address already referred to, thus aptly 
states the matter: 

To determine whether or not a statute is unconstitutional is not per se the exercise 
of judicial power any more than it is per se the exercise of legislative power or executive 
power. * * * When such a case is presented the court must of necessity decide, 
as between the statute which says one thing and the Constitution which says another 
and wholly different thing, which of the two controls, and of course must declare, 
unless the imperious language of that instrument is to be disregarded, that the Con- 
stitution, as the "supreme law of the land," necessarily prevails. The court declares 
the statute void, not because it has the substantive and independent power to pass 
upon the constitutionality of an act of Congress, for it has no such power, but because — 
as a necessary incident to the exercise of its undoubted power to decide a controversy 
properly before it, it must ascertain and determine the law and by the express pro- 
vision of the Constitution which the court is sworn to uphold and bound to enforce — 
the Constitution is the "supreme law of the land," which the statute is not unless 
"made in pursuance thereof." 

For, as we held in Norton v, Shelby County 1 — 

An unconstitutional act is not law, it confers no right, it imposes no duties, it affords 
no protection, it creates no office; it is, in legal contemplation, as inoperative as though 
it had never been passed. 

Any individual may disregard a void law as he may disregard a 
void judgment, and in so doing subject himself to no penalties. The 
principle involved is thus clearly put forth by Judge Cooley in his 
treatise on Constitutional Limitations : 

The courts sit, not to review or revise the legislative action, but to enforce the legis- 
lative will; and it is only where they find that the legislature has failed to keep within 
its constitutional limits that they are at liberty to disregard its action; and in doing 
/ so, they only do what every private citizen may do in respect to the mandates of the 
i / courts^ when the judges assume to act and to render judgments or decrees without 
\ / jurisdiction. "In exercising this high authority, the judges claim no judicial suprem- 
acy; they are only the administrators of the public will. If an act of the legislature 
is held void, it is not because the judges have any control over the legislative power, 
but because the act is forbidden by the Constitution, and because the will of the 
people, which is therein declared, is paramount to that of their representatives ex- 
pressed in any law." 2 

In a note to the chapter from which I quote, Judge Cooley refers to 
the interesting fact that there are at least two cases in American 
judicial history where demands have been made to impeach judges 

» 118 U. S., 425. 2 P. 160, citing Lindsay v. Commissioner, 2 Bay (S. C), 38, 61. 



THE CONSTITUTION, THE COURT, AND THE PEOPLE. 15 

(criminals, because they refused to enforce unconstitutional en- 
actments. One of these was in Rhode Island in 1786, the other in 
Ohio in 1808. These early efforts to effect a judicial recall were not 
successful, although the cases aroused a great deal of clamor and 
popular resentment. 

This exposition of the basis of the jurisdiction and duty of our 
courts of last resort, State as well as Federal, reduces criticisms 
against them, based on their decisions nullifying legislative enact- 
ments, to an absurdity. 

Whether these current criticisms are made in good faith or not, is 
not material; that they are made, is the deplorable fact — deplorable 
because through such criticisms public esteem and respect for law 
has been lowered. The warning of Mr. Justice Miller is especially 
pertinent : 

Let me urge upon my fellow countrymen, and especially upon the rising generation 
of them, to examine with careful scrutiny all new theories of government and of social 
life, and if they do not rest upon a foundation of veneration and respect for law as 
the bond of social existence, let them be distrusted as inimical to human happiness. 1 

It seems to be overlooked by these iconoclasts that honor has always 
attached to the judicial office, and that from the days of Solomon 
the unjust judge has been execrated corresponding to the degree in 
which the just judge has been honored; and lawyers have accepted the 
burdens and responsibilities attaching to the office for the prestige it 
gave, notwithstanding the inadequate compensation which the pub- 
lic has seen fit to give its judicial servants. And the judges of 
America in the exercise of their official functions render a higher 
type of public service and do it more effectively than any other agents 
of government. 

In a weekly magazine of wide circulation there appeared not long 
since an elaborate argument in favor of the recall of judicial de- 
cisions, in which, after a vicious arraignment of John Marshall his 
associates and successors and their motives, the writer of the article 
says : 

The Supreme Court now combines in itself both the judicial and legislative powers, 
and it exercises a general revisory authority over all legislation. 

And continuing, and in answer to the question which he asked of 
himself, as to what is meant by the situation he pictured, he said: 

It means, in the first place, that the judiciary has been established as superior to 
the other departments of the Government. It means, in the second place, that no 
economic need of the people can be incorporated into a national law if that economic 
need does not coincide with the court's economic theories. And it means, in the 
third place, that the right of the people to say, in the last instance, by what laws 
they shall be governed has been removed from them. 2 

That statement is deliberately untrue and shows how easily criticism 
degenerates into libel. Mr. Justice Miller spoke the truth when he 
said that one may count on his fingers those acts of Congress which 
have been held unconstitutional for want of constitutional power. 3 

The suggestion of the writer of that article that because the 
courts of England, Germany, France, and Switzerland do not assert 
the power to declare laws unconstitutional, our courts need not 
do so, is not in point, for no obligation is laid by the constitutions 

1 Miller on the Constitution, p. 33. 

2 Saturday Evening Post for Aug. 31, 1912. 
» United States v. Steffens, 100 U. S., 82. 



16 THE CONSTITUTION, THE COURT, AND THE PEOPLE. 

of those countries upon their courts to decide such questions, but 
under our Constitutions, Federal and State, our courts are required 
to enforce the supreme and permanent expressions of the people's 
will as declared in our written Constitutions, regardless of what sub- 
sequent legislatures may enact. 

I have referred to the niggardliness of the people toward the 
judiciary. One cause of the delays experienced by litigants is that 
in the centers of population there are not enough judges to do the 
business of the courts with reasonable dispatch, and nearly every court 
of last resort in the United States has a congested docket. It is true 
that if the system of administering law were changed so as to do away 
with so much consideration of mere questions of practice our courts 
as now constituted could dispose of much more business than at 
present, but a tremendous increase in litigation is bound to happen 
when that change comes. Moreover, the salaries of the judges are 
so absurdly and pathetically inadequate as to create surprise that the 
public has been able to command so much high-class judicial talent 
for the pay that has been grudgingly given. 

There is something else to be said of and to this mass we call the 
public and to those who so freely criticize law, lawyers, and the 
courts; for a great deal of legislation in incidental litigation have 
been required to check the commercial piracy which is the product 
of the unparalleled industrial and commerciaf prosperity enjoyed by 
the present generation. Competition used to be the life of trade; 
now it is monopoly, combinations, trusts; and I do not condemn all 
monopolies, combinations, and. trusts; but the gigantic corporations 
of this day have stifled the small business enterprises which in the 
days of our sires expanded legitimately and furnished independent 
business careers. These combinations have sought to curb individual 
ambition, andsome of their methods have been highly reprehensible. 
The overweening desire of men to get rich in a hurry has bred com- 
petitive methods both unfair and corrupt. Immense profits have 
been piled up through short weights and the adulteration of foods, 
and the frauds practiced through false prospectuses and watered 
stocks have enriched dishonest promoters at the expense of a multi- 
tude of small investors. Wholesale plundering and thievery on an 
immense scale have made a yardstick of the criminal code. These 
things are directly responsible for such legislation as the pure-food 
law, the bulk-sales bill, the Sherman antitrust law, and the drastic 
penalties against conspiracies to commit fraud. The public con- 
science has been so debauched as to regard the theft of a railroad and 
the robbery of corporate stockholders as high finance. The Equitable 
controversy developed a state of rottenness which was by no means 
confined to the Equitable family. I can name the heads of several 
successful life and fire insurance companies who were the products of 
this corrupt system, and who, though perhaps not personally moved 
by dishonest methods, did things which shocked the awakened moral 
sense of the average citizen, and they died of broken hearts because 
of the condemnation heaped upon them, just in time to escape the 
yawning doors of the penitentiary. 

■ The commandment "Thou shalt not steal" is qualified so as to run, 
"Thou shalt not steal and be caught with the goods." A demand 
has been created by the public itself for the services of dishonest 



THE CONSTITUTION, THE COURT, AND THE PEOPLE. 17 

lawyers, who arc scorned by all honorable members of the bar; and 
tho public, which furnishes a livelihood to shysters, must therefore 
take full responsibility for what they do. If all business were to be 
conducted according to the ethical standards which lawyers have 
prescribed for themselves, there would bo a vast improvement in the 
methods now prevailing. 

Certain organizations of men falsely claiming to represent the 
laboring interests of America have been very bold and lawless, and 
defiant in their lawlessness. They have encouraged a sentiment 
hostile to law and the courts, because their views of what the law 
ought to be have not been accepted hi advance of legislation. Acts 
of violence have been committed within the borders of this State 
that sent a thrill of horror throughout the civilized world, and the 
shocking outlawry and crookedness unearthed in the New York police 
department has made all America gasp. But justice is on the throne 
in California and New York, and anarchists, dynamiters, bomb 
throwers, and murderers can not escape the penalty of outraged law. 

And it is a good sign that most of the people resent the misdoings 
and shortcommgs of the misdoers and shortcomers. Such resent- 
ment shows that the public conscience is alive, and that lethargy and 
indifference to evil are not becoming traits, but are only faults; it 
keeps the mills of public sentiment grinding, and they grind fine if 
they do grind slow. 

Each generation is confronted by its own problems, but the checks 
upon popular impulses written in the Constitution are designed to 
give effect to sound, mature public opinion, which is always right, 
and to prevent the baneful effects of passion and haste. Therefore 
we who live now must not disregard the teachings of history nor the 
wisdom of the fathers. Let us not commit the supreme folly of dis- v 
trusting either the beneficence, the strength, or the adaptability of 
those institutions which are the priceless heritage to us from the 
ablest company of patriots of any period in history — institutions 
which are the model for all the peoples of the earth whose hope is for 
the ultimate recognition and enjoyment of the rights of man. 1 

1 The Hon. James Bryce. on the eve of his retirement from the post of British ambassador to the United 
Slates, paid t lie following extraordinary tribute to the Federal Constitution. The occasion was the annual 
dinner, on December 14, 1912, of the Pennsylvania Society of New York. He spoke from the topic "The 
commemorat ion of the one hundred and twenty-first anniversary of the framing of the Constitution of the 
United States.'' He said: 

"The Constitution was the work of an extraordinary group of men, such as has seldom been seen living 
at the same time in any country and such as had never been brought together in any other country. The 
Nation was then a small one, and it is one of the most striking tributes to the genius and foresight of the 
men that that frame of government which they designed for 3,000,000 people should have proved fitting 
to serve the needs of 93,000,000. The whole of your history since 1789 is a record of the services which the 
Constitution has rendered to you. It formed anew, or at least strengthened and developed, the sentiment 
which was fortunately brought by your ancestors from England, the habit of deference to the law and 
respect for its forms, with a sense "of the value of directing everything by strictly legal methods, which is 
one of the finest attributes of a free people. It taught you to recognize that a free government must be 
founded upon the sense of right, upon the respect of every man and community to the exclusion of all vio- 
lence. It impressed upon every person the sense that the will of the whole people duly ascertained and act- 
ing through the prescribed forms must prevail. The doctrine of popular sovereignty is a fine and whole- 
some principle when it is exercised in the duly prescribed and duly observed forms, just as that doctrine 
may be the source of turmoil and injury to a people which rush heedlessly to carry out its arbitrary will 
at the impulse of sudden passion." 

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